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LPA/690/2010 2/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 690 of 2010
In
SPECIAL
CIVIL APPLICATION No. 12567 of 2009
=========================================
SURESHCHANDRA
S GUPTA & 1 - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance :
MR
PH PATHAK for
Appellant(s) : 1 - 2.
GOVERNMENT PLEADER for Respondent(s) :
1,
None for Respondent(s) : 2 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 19/04/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. The
appellants, only two in number, have called into question order dated
07.04.2010 of learned single judge in Special Civil Application No.
12567 of 2009, whereby their petition was disposed of, without
expressing any opinion on merits, only on the ground of availability
of appropriate alternative remedy. It could not be disputed that in
the petition under Articles 14 and 226 of the Constitution, the
appellants had mainly prayed for direction to take action against the
respondent-management for illegal closure of the undertaking and for
non-payment of due wages, as also for a declaration that the
settlement arrived at between the management and
representative-Union, as approved by the labour court, was illegal.
Having considered the facts of the case, learned single judge found
that the alternative remedy under the Payment of Wages Act and Bombay
Industrial Relations Act, 1946, would be effective remedies.
2. It
was vehemently argued by learned counsel, Mr. Pathak, that the
company, managed by respondent no.3, was already ordered to be taken
into liquidation, even as the representative-Union of the employees
had entered into a settlement on 27.01.2010 and the settlement was
approved by the labour court on 03.02.2010 in B.I.R. Application No.
85 of 2008. It was further submitted by learned counsel, Mr. Pathak
that 62 other employees as well as 02 appellants herein had refused
to accept any compensation or other benefit under the aforesaid
settlement as they were demanding and claiming all the rights
accruing to individual workman under the provisions of Section 25-O
of the Industrial Disputes Act,1974. He further submitted that the
appellants would not be able to agitate their grievance before the
Labour Court or the Industrial Court on account of the settlement
entered into by the representative-Union and the settlement having
been already approved by the labour court. He also submitted that
order in Company Petition No. 106 of 1999, whereby the company is
ordered to be wound up, is also under challenge at present and
ad interim relief is granted in O.J. Appeal No. 104 of 2009
by order dated 24.11.2009.
3. All
the above facts and submissions do not derogate from
the fact that the original application in B.I.R. Application No. 85
of 2008 was made by the representative-Union under the provisions of
Section 79(1) of the B.I.R. Act and the appellants herein could also
have made their application under Section 79(1). Thereafter, the
provisions for appeal, which could be availed, are to be found in
Section 84 of the B.I.R. Act and additional power of superintendence
are conferred upon the Industrial Court under the provisions of
Section 85 of the B.I.R. Act. As for any urgent injunction sought or
required by the petitioners in their individual capacity, the
provisions of the Payment of Wages Act could as well be availed but
learned counsel, Mr. Pathak, insisted on exercise of jurisdiction by
this Court under Article 226 of the Constitution on the basis of
judgement of Division Bench of this Court in Miscellaneous
Mazdoor Sabha Vs. State of Gujarat & Ors. [1992 (2) GLR 1065],
which was based upon the factual premise that violation of statutory
provisions effecting wholesale uprooting of the entire workforce,
contrary to the obligations flowing Sections 25FFA and 25FFF could be
considered within the domain of public duty. However, in the facts of
the present case, the petition and the appeal have been filed by only
two of the total workforce of more than 200 employees and the
appellants
could not rely upon any legal provisions permitting them to litigate
on behalf of or on the authority of any other workman
concerned.
It was, however, insisted by learned counsel, Mr. Pathak that
petition was filed on behalf of total 78 workers, whose names were
mentioned in the petition by way of annexure.
Learned counsel, Mr. Pathak also relied upon judgement of the Apex
Court in Oswal Agro Furane Ltd. Vs. Oswal Agro Furane
Workers Union [AIR 2005 SC 1555],
to emphasis the legal proposition that prior permission of the
appropriate Government was sine
qua non for
legal closure and by a settlement within the meaning of Section 2(p)
read with sub-section (3) of Section 18 of the Industrial Disputes
Act,1947, cannot absolve the employer from complying with the
provisions of Section 25-N and 25-O of the Industrial Disputes Act.
Since the impugned order is expressly made without expressing any
opinion on merits and the issue before us is the availability of
effective alternative remedy, it would be improper and unnecessary
for us to entertain the appeal on the basis of merits of the
contentions of the appellants. As observed earlier, the appellants
are having alternative remedy which are appropriate and provided
under the relevant legislation itself. Therefore, the impugned order
of learned single judge is not required to be interfered and the
appeal is not required to be entertained. Accordingly, it is
summarily dismissed. Civil Application would not survive in view of
this order.
[D.H.WAGHELA,
J.]
[M.D.SHAH,
J.]
Jyoti
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